Digital Commons Network^™

Moral Economies Of Family Reunification In The Trump Era: Translating Natural Affiliation, Autonomy, And Stability Arguments Into Constitutional Rights, Kerry Abrams, Daniel Pham

Faculty Scholarship

No abstract provided.

How Does Subnational Variation In Repression Affect Attitudes Toward Police? Evidence From Iraq’S 2019 Protests, Mara R. Revkin

Faculty Scholarship

Recent episodes of severe police repression and violence against protesters around the world have brought new urgency to longstanding calls for police reform and in some cases more fundamental structural changes including abolition of existing police institutions. However, the police are not monolithic and there is considerable subnational variation in the extent to which individual police officers and units use excessive force against civilians, and this variation has important implications for police legitimacy in the eyes of the public. In Iraq, where federal police violently repressed anti-government demonstrations in 2019—killing more than 600 protesters—but local police refrained from violence and …

Reflections On Authoritarianism, Mara Redlich Revkin

Faculty Scholarship

No abstract provided.

Toward An Optimal Decarceration Strategy, Ben Grunwald

Faculty Scholarship

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how. This question is far more complicated than it might seem. We could cut the prison population in half, for example, by drastically shortening sentences. Or we could reduce prison admissions. Or we could do both. And we could do either or both for countless combinations of criminal offenses. Moreover, even when they reach the same numeric target, these strategies are not equivalent. They would have vastly different consequences for both prisoners and the public, and widely varying timeframes to …

Regulating Digital Currencies: Towards An Analytical Framework, Steven L. Schwarcz

Faculty Scholarship

Digital currencies have the potential to improve the speed and efficiency of payments and to broaden financial inclusion. The principal goal is to facilitate payments among consumers on a day-to-day basis as an alternative to cash, both domestically and across national borders. This Article begins by critically examining and critiquing the ongoing progress of trying to develop retail digital currencies, focusing on the two most feasible approaches: central bank digital currencies (“CBDC”), and privately issued currencies that are backed by assets having intrinsic value (“stablecoins”). The Article then analyzes how these digital currencies should be regulated and supervised, exploring their …

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Pollution, “Ecologists,” Regulations, And Renewables, 1945-1981, Adam D. Orford

Faculty Scholarship

Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational, the undermining of …

Impeaching Legal Ethics, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …

South Korea Shatters The Paradigm: Corporate Liability, Historical Accountability, And The Second World War, Timothy Webster

Faculty Scholarship

South Korea is currently revising its interpretation of Japanese colonialism, and the fallout from World War II more generally. In 2018, the Supreme Court of South Korea issued two opinions that staked new ground in this process of legal revision. First, by holding Japanese multinational enterprises legally liable for events that took place in the early 20th century, the verdicts fissure a wall of corporate impunity that courts in Japan, the United States and many Western jurisdictions have erected over the past three decades. Second, by situating the decisions within Korea’s own colonial past, the judgments advance a post-colonial jurisprudence …

Margins Of Empire: The Sakhalin Koreans’ Long Saga Home, Timothy Webster

Faculty Scholarship

Migration carries with it many risks, from perilous journeys along risky corridors to hostile environments in one's adopted country. But what happens when migrants cannot return home? This Article examines the difficulties endured by Sakhalin Koreans, a group of ethnic Koreans who emigrated to Sakhalin Island during the Japanese colonial period and found themselves stranded in a foreign country (the Soviet Union) for the next half century. After recounting the migration of Koreans to Sakhalin, and analyzing lawsuits filed in Japan to repatriate them, it analyzes the infirmities of the international human rights system and the challenges of repatriating a …

Innovation And Equality: An Approach To Constructing A Community Governed Network Commons, Rider W. Foley, Olivier Sylvain, Shelila Foster

Faculty Scholarship

Networked computing affords users distinct opportunities to communicate with each other, build relationships, transact business, and create. Yet, the digital divide perpetuates existing disparities between social groups. Interventions that rely on private ownership or philanthropy often fall short. Efforts to redress these disparities require collaboration across academic disciplines and with government and private sector organizations. This paper chronicles efforts in Harlem to address this through a collaborative approach to networked computing. We draw on two concepts--responsible innovation and co-governance--to sketch a community-based approach to networked computing. Second, the article identifies two potential systems, based in property law, through which a …

Transactional Clinical Support For Mutual Aid Groups: Toward A Theory Of Transactional Movement Lawyering, Michael Haber

Faculty Scholarship

No abstract provided.

Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Edward J. Janger, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Some Reflections On The Fourth Chilean-German-Tanzanian Legal Talk, James M. Cooper

Faculty Scholarship

On December 3, 2021, the Heidelberg Center for Latin America convened a group of academicians from around the world to explore the way legal pluralism contests values (including the protection of universal human rights), disrupts our national legal systems, and provides for self-determination. The transnational webinar was co-sponsored by the University of Heidelberg and University of Bayreuth of Germany, Universidad de Chile, University of Dar Es Salaam in Tanzania, Faculdades de Campinas in Brasil, as well as California Western School of Law/Proyecto ACCESO in the United States, and the German Academic Exchange Service (DAAD).

The webinar brought together participants with …

A Contentious Mission: Water Supply And Corps Of Engineers Reservoirs, Reed D. Benson

Faculty Scholarship

The U.S. Army Corps of Engineers operates hundreds of multi-purpose reservoirs nationwide, many of which provide water for municipal and industrial purposes. Demands for water from Corps reservoirs are sure to grow, and Congress has ordered the Corps to report on whether water supply should become a primary mission of the agency. The Corps has experienced controversy over water supply decisions, including disputes involving its Missouri River reservoirs and Lake Lanier in Georgia. When the Corps proposed a national Water Supply Rule in 2016 it drew significant opposition, forcing the agency to withdraw the rule and reassess its policies. This …

Framing And Contesting Unauthorized Work, Angela D. Morrison

Faculty Scholarship

Unauthorized workers face precarity in the workplace and the threat of forced expulsion from their communities. Some of the reasons for that precarity result from how the law frames unauthorized workers. The law views unauthorized workers as lacking full human or civil rights, as “unauthorized,” to the exclusion of their other identities. The legal system also creates a binary that views unauthorized workers as either criminals who are complicit in their exploitation or passive victims for employers to exploit. This Article draws on social movement literature to theorize the processes that result in this framing and to explore how immigrant …

Selectively Disciplining Advocates, Bruce A. Green

Faculty Scholarship

After lawsuits challenging the results of the 2020 presidential election failed spectacularly, some wondered whether the plaintiffs’ lawyers would be disciplined for filing frivolous complaints. Time will tell. But, if these lawyers are not disciplined, one should not be surprised. This Article presents an empirical study of the New York disciplinary process, which confirms that advocates who violate disciplinary rules by overzealously pursuing their clients’ interests, such as by making frivolous claims, are rarely punished in the disciplinary process. That is because disciplinary prosecutors, operating in secret, have discretion as to whether to bring formal charges against lawyers who violate …

Countering Gerrymandered Courts, Jed H. Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …

Afrofuturism And The Law, I. Bennett Capers

Faculty Scholarship

Long before the film Black Panther captured the public’s imagination, the cultural critic Mark Dery coined the term “Afrofuturism” to describe “speculative fiction that treats African-American themes and addresses African-American concerns in the context of twentieth-century technoculture.” Since then, the term has been applied to speculative creatives as diverse as the pop artist Janelle Monae, the science fiction writer Octavia Butler, and the visual artist Nick Cave. But only recently have thinkers turned to how Afrofuturism might guide, and shape, law. This special issue, “Afrofuturism and the Law,” features articles that explore the many ways Afrofuturism can inform a range …

Discussions In Dispute Resolution: The Foundational Articles, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

Legitimizing Lies, Courtney M. Cox

Faculty Scholarship

Lies are everywhere today. This scourge of misinformation raises difficult questions about how the law can and should respond to falsehoods. Legal discourse has traditionally focused on the law’s choice between penalizing and tolerating lying. But this traditional framing vastly oversimplifies the law’s actual and potential responses. Using trade secrets as a case study, this Article shows that the law sometimes accepts lies as a legitimate option for fulfilling legal requirements and may even require lies in increasingly common circumstances.

Commonly supposed legal and moral commitments against lying do not undermine this reality. To the contrary, the Article reveals that …

Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown

Faculty Scholarship

The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As …

Nonprofit Board Composition, Atinuke O. Adediran

Faculty Scholarship

This Article addresses a critical gap in the literature and current debates about the composition of nonprofit boards. The law of fiduciary duties and nonprofit governance best practices do not provide sufficient guidance on how to compose boards to empower the communities they serve. And even as the corporate sector is seizing on current important moments to debate the inclusion of employees and racial and ethnic minorities on corporate boards, nonprofit boards are largely left out of these debates. The Article introduces the concept of board capital, which originated from the for-profit management literature, but has gained a stronghold in …

Traveling Judges, Alyssa S. King, Pamela K. Bookman

Faculty Scholarship

Around the world, domestic courts focused on commercial disputes hire foreign judges. The practice seems to resemble arbitration, but is also rooted in colonialism. These traveling judges are predominantly retired English judges hired by small, market-dominant jurisdictions, like Hong Kong or Dubai. The judges’ identities reveal efforts to harness business preferences for English common law into domestic court systems. While judges aspire to spread the rule of law, local politics may dictate these courts’ futures. This Article maps the practice of traveling judges and explores its implications.

A New Telecommunications Act: Prioritizing Consumer Protection And Equality, Olivier Sylvain

Faculty Scholarship

Through the Telecommunications Act of 1996, Congress imposed long overdue duties and structural limits on the telephone, broadcasting, and cable industries. Though the 1934 law was bold and important, legislators unwittingly enabled a handful of companies to concentrate power in those markets.

As needed as it was, the Telecommunications Act also had flaws. Congress’s structureof- the-market approach in 1996 did not protect against disparities in consumers’ access. Nor did it (or could it) anticipate the informational harms that the internet would facilitate or enable.

These concerns ought to be the primary focus of reform today. To be sure, the Federal …

Predicting Cybersecurity Incidents Through Mandatory Disclosure Regulation, Aniket Kesari

Faculty Scholarship

Cybersecurity risk is an increasingly common concern for organizations
that collect and maintain vast troves of data. In 2011, the United States
Securities and Exchange Commission (SEC) provided guidelines for how
publicly traded companies should convey these risks to potential investors. But
does this mandatory disclosure regime effectively serve this purpose in the
cybersecurity context? This Article uses machine learning and natural language
processing techniques to analyze firms’ mandatory risk disclosure statements,
predict which firms are at the greatest risk of suffering cybersecurity incidents,
and evaluate how well disclosure meets the goals of the broad regulatory
regime. More broadly, this …

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

The Law, Economics, And Governance Of Generation Covid-19 Long-Haul, Julia Puaschunder, Martin Gelter

Faculty Scholarship

The SARS-CoV-2 novel coronavirus is an external shock to all societies with lasting impacts that have changed individual, political, and corporate decisions profoundly. Increasing evidence reveals that an estimated 10-50% of those previously infected with COVID-19 face a longer-term or long-term health impact and/or chronic debilitation that in many cases comes and goes in waves. This phenomenon has already been referred to as a pandemic within the pandemic. The broad-based and long-term impact of COVID Long Haulers have also holds the potential to change our world and modern society, lasting through the following three outlined speculative trends: (1) The coronavirus …

Platform Realism, Informational Inequality, And Section 230 Reform, Olivier Sylvain

Faculty Scholarship

Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.

In The Zone: Work At The Intersection Of Trade And Migration, Jennifer Gordon

Faculty Scholarship

Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one set of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant …

Bringing Up The Bodies, I. Bennett Capers

Faculty Scholarship

No abstract provided.